Mixed messages on the San Marcos

For more than 40 years canoes have raced down the San Marcos and Guadalupe rivers. Along the way boaters pass signs of “no trespassing,” “stay off” and “danger do not proceed.” It is impossible to both obey these signs and complete the Texas Water Safari race.

It’s the same in rivers across Texas.

Under current state law the public has the right to not only boat but wade, picnic and swim along any public waterway as long as these activities are limited to the stream, river or lake bed. All rivers in the state are public.

It seems simple enough that the public has had the right travel along these rivers. But the reality is they don’t.

One of the oddest exemptions is in San Antonio where it is against a city ordinance to touch the San Antonio River. The city can issue a ticket for up to $500 if you do.

On the San Marcos and Guadalupe the confusion comes with dams that force boaters to portage, like this one outside of Martindale where it would it would almost be impossible to go over without injury.

But that does not mean that once an obstruction like a dam is in place that the public has the right to portage around it, Kennedy explains.

“A right of portage has been recognized as a necessary part of the right of navigation in some other states, but there is no clear authority in Texas,” Kennedy wrote in an article about water access. “The portage issue implicates the criminal trespass statute, and possibly the defense of necessity.”

So it would seem that boaters can argue that their trespass is justified because the dam is impossible to navigate, but they don’t have a right.

And that is just what the law in Austin says. As Con Mims III, executive director of the Nueces River Authority, points out, some landowners have guns and it does not matter what the law says.

For us, we took the portage, said hello to everyone we saw and moved fast figuring we would be gone around the next river bend before anyone could take aim.